Trinh and Nhan
[2011] FMCAfam 98
•3 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRINH & NHAN | [2011] FMCAfam 98 |
| FAMILY LAW – Parenting – coercive and controlling violence – no contact or communication. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA |
| Hughes & Hughes (1980) FLC 90-869 McCall & Clark (2009) 41 FAMLR 483 Osckar & Sankey [2007] FamCA 814 Sigley v Evor [2011] FamCAFC 22 |
| Applicant: | MR TRINH |
| Respondent: | MS NHAN |
| File Number: | SYC 2128 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 25-27 October & 1 December 2010 |
| Date of Last Submission: | 1 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2011 |
REPRESENTATION
| Applicant: | Self-represented |
| Solicitor Advocate for the Respondent: | Ms Shea |
| Solicitors for the Respondent: | Legal Aid NSW |
| Counsel for the Independent Children’s Lawyer: | Ms Castle |
| Independent Children’s Lawyer: | Redleaf Family Lawyers |
ORDERS
That the Mother have sole parent responsibility for the children, [X] born [in] 2007 and [Y] born [in] 2008 (‘the children’).
That the children live with the Mother.
That the children spend no time with the Father.
That the Mother be authorised to apply to the Registrar of Births, Deaths and Marriages of NSW so that the child registered as [Y] born [in] 2008 now be registered as [Y].
That pursuant to section 28(f) of the Births, Deaths and Marriages Act (NSW) 1995, the Registrar register the Child’s name in the form specified in Order (4) herein.
The Mother shall take all reasonable steps to serve a sealed copy of these Orders upon the Registrar of Births, Deaths and Marriages of NSW within 28 days of receipt of a sealed copy of these Orders.
That the Father forthwith surrender to the Family Law Registry at Sydney the passport for [X].
That the names of the children, [X] born [in] 2007 and [Y] born [in] 2008, be removed from the Airport Watch List AND IT IS REQUESTED that the Australian Federal Police give effect to this Order.
That the Mother be authorised to apply for and obtain an Australian passport for the children, [X] born [in] 2007 and [Y] born [in] 2008, notwithstanding the Father’s consent is not obtained AND IT IS REQUESTED that the Department of Foreign Affairs and Trade issue a passport for the said children.
That the Mother have sole parental responsibility for the renewing of the children’s passports without the consent of the Father being required for such renewal.
That pursuant to sections 68B(a) and 68B(b)(i), the Court grants an injunction for the personal protection of the children, [X] born [in] 2007 and [Y] born [in] 2008, and the mother, Ms Nhan, hereby restraining the father Mr Trinh (aka Mr Trinh), from:
(a)Approaching, contacting or attempting to contact the mother or either of the children by any means whatsoever.
(b)Coming within 100 metres of any place where the mother or either of the children may from time to time reside.
(c)Entering or attempting to enter any place where the mother or either of the children may from time to time reside.
(d)Coming within 100 metres of any child care facility, pre-school or school attended by either of the children from time to time.
(e)Assaulting, molesting, harassing, threatening or stalking the Mother or either of the children.
That the mother provide the Father with copies of all medical reports prepared by specialists in relation to both children.
That the Father be permitted to arrange with any school which the children may attend from time to time, to receive copies of all school reports, newsletters and invitations.
Any submission in relation to costs arising out of these orders should be filed and served within 28 days and shall not exceed 250 words. Any response must likewise be filed and served within 28 days and not exceed 250 words. Where any party submits that his or her financial circumstances is relevant, a sworn Financial Statement must also be filed and served.
IT IS NOTED that publication of this judgment under the pseudonym Trinh & Nhan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2128 of 2009
| MR TRINH |
Applicant
And
| MS NHAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, [X], who is four years old, and her younger brother, [Y], who is two years old. Their father is the applicant. He is 46 years old. The children’s mother is the respondent. She is 39 years old. Both parents were born in Vietnam but now live permanently in Australia. They commenced a relationship in 2004, married [in] 2006 and separated on a final basis on 11 March 2009 when the mother left the former matrimonial home with the children. The children currently live with her and are not spending time with their father.
This case is about whether, and if so, under what circumstances the children should spend time with their father. The case involves allegations of serious family violence which, if established, would have a profound impact on the parenting orders and the best interests of these children. The child [Y] has special needs that will be discussed in further detail below.
Background
The father arrived in Australia from Vietnam in the 1980s. He was a refugee from Vietnam and suffered the horrors of the Vietnam War as a child, losing both parents and having what can only be described as a terrible, tragic and traumatic childhood. His journey to Australia was a difficult one. Nonetheless, like many in his generation he studied and worked hard, obtained a degree from [university omitted], and has found permanent, stable employment. The father represented himself in these proceedings, as from shortly before the hearing.
Prior to that, he had been represented by a solicitor who prepared most of his affidavit material. I record here that the father was, apart from just a few occasions, exceedingly polite and deferential towards the Court and all other parties involved in these proceedings. The exceptions to this, however, are notable and will be discussed in more detail below. In short the father’s position in these proceedings is that he loves his children, will do almost anything and accept almost any form of contact with them. He is aware of the allegations of family violence made against him, but strenuously denies them.
The mother arrived in Australia from Vietnam in 1998 in emotionally difficult circumstances that are not directly relevant to these proceedings. She gives a detailed history of family violence commencing from the early stages of her relationship with the father. As will be seen below, her evidence is quite detailed and, as it turns out, is corroborated by a number of sources.
Both mother and father concede that, at the very least, their relationship was a tumultuous one and that the police were called to their home at least eight times. The evidence will indicate that the father has been charged on a number of occasions with family violence related offences but convicted on only a few, and that numerous apprehended violence orders have been made.
Since separation in March 2009, the father has enjoyed contact with his children either pursuant to an informal agreement, or pursuant to orders of the Court, some of which have been by consent. Thus, for example, on 2 September 2009 orders were made by consent for the children to live with the mother and to spend time with the father on a weekly basis, including overnight. However, on 10 September 2009 I discharged those interim orders and ordered that the father have supervised contact at the [B] Children's Contact Centre. On 21 May 2010 that centre suspended the provision of its services, following an incident that occurred on 17 May 2010, which will be discussed below. The children have not seen their father since the supervised contact service was suspended.
The child [Y] has special needs. Whilst there is an issue about the extent to which the father appreciates the impact of [Y]’s medical conditions from a parenting perspective, it was my impression that he did not cavil with the medical evidence relating to [Y]. In this regard I adopt the family consultant’s summary of [Y]’s medical condition at paragraph 3 of her report dated 16 April 2010 in which she says that [Y] “has very significant development problems which were evident at birth. He has vision impairment which has required a number of surgeries and he is likely to have ongoing intellectual delays and physical impairments.”
I formed the distinct impression that because of [Y]’s young age, as well as the problems he experiences, his prognosis for the future was uncertain and indeed still evolving. What was abundantly clear from the mother’s evidence, not challenged by the father, is that [Y] is a much loved child who will, regrettably, be very demanding in terms of the provision of parenting during his lifetime. The evidence leads me to conclude that whilst the father very much loves [Y], he has not yet fully appreciated the nature and extent of his disabilities, and has not personally experienced in a realistic context the special demands on parenting capacity that [Y] brings.
I discerned no challenge by the father to the proposition that throughout the children’s lives the mother has been primarily responsible for their parenting and thus, for example, has borne most of the responsibility for attending to [Y]’s special needs. I am satisfied that the father was involved in their care and upbringing, and deeply loves both children.
This hearing took place over a period of four days. The father represented himself. I found him to be an intelligent and articulate man who was sufficiently objective to be able to discern that his proposals to the Court needed to evolve in response to the evidence as it was presented.
Thus, for example, whilst his amended application filed 1 October 2009 sought orders for weekly overnight contact, by the time of closing submissions on 30 November his proposal, expressed in a document entitled “My Reasonable Requests” was for one hour supervised contact on a fortnightly basis at the [B] contact centre for a period of months, followed by such contact occurring in a public place such as McDonald’s. The father relied on four affidavits that had been prepared with the assistance of his previous solicitor, sworn 9 April 2009, 16 April 2009, 1 October 2009 and 21 June 2010.
There was a considerable volume of documentation tendered in evidence that had been produced on subpoena. The father indicated to me that he had read these documents and, in any event, time was given for him to consider documents at the time of tender. The father undertook very little cross-examination of the witnesses in the mother’s case and the family consultant.
I explained to him the potential consequences to his case of not directly challenging in cross-examination some of the assertions made by the mother. He appeared to understand this. I do note, however, that Counsel for the Independent Children’s Lawyer’s cross-examination of the mother, and her witnesses, and of the family consultant, was thorough, and as robust as the circumstances called for.
The mother was represented by the Legal Aid Commission of New South Wales, and one of their in-house solicitor advocates, Ms Shea, appeared for her at the hearing. Her final proposal was that she has sole parental responsibility, that the children live with her, and have no time and no communication with the father. In the alternative she proposed that for a period three years the children have supervised time once every three months at [B] Children's Contact Service, or some such similar facility. She also sought a number of ancillary orders relating to birth certificates, passports, travel, as well as an injunction for the personal protection of the children and herself.
The children were represented by an Independent Children’s Lawyer, Ms Franklin-Bell, and at the hearing Ms Castle of Counsel appeared. The Independent Children’s Lawyer’s proposal was that the mother have sole parental responsibility and that the children live with her, but that the father have one to two hours supervised contact each fortnight at a supervised contact centre, for a period of three years, as well as that the mother provide the father with information relating to the children.
In the first schedule to these reasons I reproduced the orders sought by the father, the mother, and the Independent Children’s Lawyer.
Once the evidence had closed, but before submissions were made, I raised with all parties the possibility of making a long term supervised contact order, subject to there being a facility prepared to provide this service given the history of this case. The Independent Children’s Lawyer’s proposal, and to a certain extent the mother’s alternative proposal, reflect this. I record that I was fully conscious of the undesirability, as a matter of general principle, of long term supervised contact orders, both from the perspective of the children, as well as the perspective of the service provider. At that time, however, based on the evidence the alternatives seemed to be supervised contact, or no contact.
I am sure that the Independent Children’s Lawyer would not make a proposal for long term supervised contact if she did not believe it was in the best interests of the children, and if she did not believe that it would be reasonably possible to find a service provider. Making an order for a fixed term, for example three years, is probably something that I raised in the course of discussion after the close of evidence, but before submissions.
As I have foreshadowed, there was a considerable quantity of subpoenaed material that was tendered in evidence but which was not examined by me until after submissions and during the period that these reasons were being written. As it turns out, this evidence, which is largely corroborative of the wife’s assertions, have greatly contributed to my taking another view about what is the most appropriate order for these children.
Issues
Having regard to the broad statements of introduction and background set out above, I turn now to consider what are the issues raised in this case.
The first issue relates to the benefit for the children of having a meaningful relationship with their father, as well as the nature of their relationship with him. As the solicitor advocate for the mother submitted that there is no meaningful relationship between these children and the father, I have to decide that point. In any event, I have to consider the “benefit” to the children of having a meaningful relationship with their father.
A related issue is about protecting the children from harm which principally arises from their exposure to family violence, and the father’s attitudes about family violence. It is clearly a part of the mother, and Independent Children’s Lawyer’s case that the children need to be protected from the risk of harm arising from the father’s violent nature, particularly in the context of a case where he has so consistently, and forcefully denied the allegations made against him.
I will need to make factual findings in this regard.
The third issue is to consider the nature of the children’s relationships not just with their mother and father, but with the other significant adults around them, particularly in view of the competing proposals.
There are a number of other additional considerations which need to be considered including the impact of change on the children, whether there are any issues of practical difficulty and expense associated with contact, a consideration of parental capacity, as well as attitudes to the children and to the responsibilities of fatherhood.
Applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Family violence
In the recent Full Court decision in Sigley v Evor [2011] FamCAFC 22, the Full Court discusses what will be one of the main issues in this case – the meaning of “meaningful” in the context of “meaningful relationship” in s.60B(1)(a) and s.60CC(2)(a). The Full court states at paragraphs 131-133 and 136:
Definition of ‘meaningful’
131. As to the definition of “meaningful”, which appears in s 60B(1)(a) of the Act, being the first object of Pt VII, and s 60CC(2)(a), being the first primary consideration, in McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court (Bryant CJ, Faulks DCJ & Boland J) observed at 83,475: “The Act does not contain a definition of ‘meaningful’, nor does it provide any specific criteria to assess how parents either have, or should have, a ‘meaningful involvement’ in a child’s life. It does not give guidance to the interpretation of the phrase ‘meaningful relationship’ ”.
132. In Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
133. In McCall & Clark the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”. The Full Court observed at 83,476:
117. Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.
118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
…
136. We also observe that in Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at 83,502:
103. The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at 83,513: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
Allegations of family violence occur frequently in courts exercising jurisdiction under the Family Law Act. It is expressly referred to in the legislation. Family violence is defined in s.4(1) in the following terms:
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
It is important to note that s.60CC(3)(m) permits the court to take into account any other fact or circumstance that the court thinks is relevant. Thus, any other form of abusive or controlling conduct that does not necessarily fall within the statutory definition may nonetheless be considered in determining what is in a child’s best interests.
Experience in this jurisdiction teaches that family violence can often cast a long shadow. Thus the impact of violence can endure for many years after it has ceased. Victims, witnesses and others exposed to violence including children may thus experience physical and/or psychological harm long after violent relationships have ended. Nonetheless every case must be determined on its merits and by reference to the evidence.
The relevance of family violence permeates all of the primary and additional considerations referred to in s.60CC(2) and (3). Family violence may have an impact on meaningful relationships (s.60CC(2)(a) and create the need to protect children from physical or psychological harm (s.60CC(2)(b)). Family violence might influence the views expressed by a child (s.60CC(3)(a)), and set a context in which toe examine and understand the nature of a child’s relationship with a parent or another person (s.60CC(3)(b)). Family violence might explain a parent’s willingness, or lack thereof, to facilitate and encourage a close and continuing relationship between a child and a parent (s.60CC)(3)(c)). When a finding of family violence is made, a child might be more vulnerable to suffer the adverse effects of changes in their circumstances including separation from a parent (s.60CC(3)(d)). Issues of practical difficulty and expense might be accentuated if there is violence (s.60CC)(3)(e)). Sometimes family violence has an impact on the capacity of the victim to provide for the needs of a child, and raises similar issues about the perpetrating parent (s.60CC(3)(f)). In some cases the maturity, sex, lifestyle and cultural background of a parent provides some context in which to examine and understand violence, though experience indicates that its impacts are often the same (s.60CC(3)(g), (h)). Family violence may well reflect poorly on the perpetrating parents’ attitude to the child, and to the responsibilities of parenthood. Thus, for example, a violent parent may be considered a poor role model for a child (s.60CC(3)(i)).
Mother’s evidence
Even though the mother is the respondent in these proceedings, having regard to the nature of her allegations it is appropriate to deal with her evidence first. I make the preliminary observation that the mother impressed me in the witness box by her candour. Her evidence was presented with sincerity, and often in a highly emotional and difficult context for her. When asked to expand upon her evidence, what she said was both detailed and clear.
When confronted with awkward questions going to the circumstances of her migration to Australia, she answered in a truthful manner. Counsel for the Independent Children’s Lawyer certainly did not “hold back” in terms of questioning of the mother. It was apparent that the mother exaggerated part of her evidence, but interestingly not even Counsel for the Independent Children’s Lawyer was prepared to make the final submission that the mother’s allegations against the father were exaggerated.
At the end of the day, the mother came across as a very convincing witness who managed to deal with evidence relating to emotional issues quite well. For example, I found her evidence about the disabilities affecting [Y], and his special needs, to be quite poignant. So too was her reading out of her diary entry for 9 March 2009 in which she describes, in graphic terms, an assault by the father on her. During the father’s short cross-examination of her, when he put it to her that she had made up so many stories against him, she explained using words to the effect that she had not made up anything, that it was the truth, and that she still loved the father very much but because of his bad behaviour she had to protect herself from him.
The mother’s evidence about family violence commences from paragraph 33 of her affidavit sworn 30 September 2010. She explains that the father’s family violence towards her was, in effect, so frequent and pervasive that it was difficult for her to recall specific dates. She does assert, however, that the first time that the father hit her was in October 2005. This incident commenced with a verbal argument that developed into a physical argument with him slapping her face and mouth. There were a number of similar arguments before the wedding and she deposes how, after each time, he would say sorry and go down on his knees and beg forgiveness, promising to change. She describes an incident the day after their wedding which involved shouting, grabbing by the hair, and pushing her head against the wall, as well as slapping a number of times across her face and upper body.
The mother concedes that there were periods during the marriage when the father did not hit her for weeks on end, but there were also periods when the violence occurred two or three times a week.
The mother gave evidence about particularly violent periods, for example, between April and June 2006 when her mother was visiting from Vietnam. She deposes to violence during pregnancy including an incident in September 2006 when the father threw a two litre bottle of Coca-Cola at her face resulting in facial bruising as well as a swollen left eye. The mother deposes to going to a women’s refuge in [suburb omitted] for two weeks at about this time, an assertion that is corroborated by exhibit R3 being the house rules contract signed by the mother in relation to the refuge.
After the first child was born there was an incident at the hospital in which the father lost his temper and tried to hit the mother’s sister. This assertion is corroborated by documents produced by the Department of Community Services.
The mother gives evidence of further assaults in September and October 2007 and April 2008. In relation to the latter incident documents produced by the New South Wales Police confirm that there was an argument, and that the mother did not wish to take the matter further because, as she explains in her affidavit, she was scared they would make him stay in gaol. Indeed, the documents produced by the New South Wales Police do confirm that they were extensively involved with this family, and frequent visitors to the home arising out of arguments that occurred.
The mother also gives very detailed evidence about sexual violence perpetrated by the father against her, commencing from paragraph 54.
She gives very detailed evidence about the violent circumstances of separation on 9 March 2009, assertions that are corroborated by documents produced by the New South Wales Police, a medical record of Dr T, as well as evidence of the mother’s sister.
The mother frankly concedes that even after these incidents, and separation, she did permit the father to have contact with the children, initially unsupervised. She explains in her evidence that his subsequent aggression including threats towards the mother’s family caused her to reconsider and to seek supervised contact.
The mother deposes to the difficulties that occurred, even with supervised contact and in particular an incident that occurred on 16 May 2010 outside the [B] Children's Contact Service in which she asserts that the father assaulted her sister and nephew. These assertions are corroborated by evidence given by the sister and nephew, notes of the supervised contact service, statements given to the police, the fact of charges being laid against the father, as well as some hospital records.
In her evidence the mother expresses concerns about the father’s mental health including concerns about paranoia. There is insufficient evidence before the Court to make findings about the father’s mental health. The father certainly led evidence about this but it is not such as to carry much weight. Whilst I have some lingering doubts about the father’s mental health, it is not possible to make a finding about this.
The mother gives evidence about her own health and particularly the stress she has experienced coping with her violent relationship with the father, the separation, as well as trying to care for [Y] who has what she describes as a severe disability. She describes her fear about the consequences of taking action against the father. She describes long periods of suffering constant headaches and worry when she went to sleep. She is currently seeing a psychologist at the [T] Mental Health Centre, who gave evidence in this case. She is currently receiving support from Ms D, a social worker at the [S] Centre. Ms D also gave evidence in this case.
At paragraph 214 the mother gives evidence about the father hitting the oldest child. The thrust of her evidence was that this was inappropriate, and excessive corporal punishment. When she was cross-examined about this issue, by Counsel for the Independent Children’s Lawyer, I formed the view that she was exaggerating this part of her evidence. I must say that, having regard to all the other evidence in this case, this does not necessarily allay concerns I have about the father being potentially violent to the children in extreme circumstances.
I granted leave to the mother to lead some evidence in chief in response to matters raised by the father in cross-examination. Reference was made to a letter that the father wrote to her on 17 March 2009 the thrust of which is that he apologises to her for his conduct towards her. The father asserted that she had forced him to write that, otherwise contact with the children would cease. She denied that. I accept her denial as being convincing.
The mother already had the benefit of the provisional apprehended violence order as at 12 March 2009, and this became an interim order on 24 March. The evidence of both parties is that between March and April the children spent time with their father by agreement. On 9 April 2009 the father filed the application presently before the Court. In these circumstances, his assertion that she forced him to write the letter is plainly unconvincing.
The mother gave evidence about the circumstances of the many photographs that the father tendered as part of his case to show the normalcy of family life, and the closeness of his relationship with his children, both before and after separation. The father relied on these photos to rebut the mother’s assertions about family violence. The mother’s explanation of the circumstances in which the photos were taken more than adequately explain the situation. All of the photos tendered by the father go nowhere near establishing the absence of violence, and even the communications that took place between the mother and father during the relevant periods do not support the father’s case that no violence occurred.
I have already briefly adverted to some of the documents tendered in evidence in the mother’s case which corroborate the assertions she made about violence. The documents produced by the New South Wales Police Service, [W] Health Service, Dr T and the New South Wales Department of Community Services are all largely corroborative of the mother’s assertions in relation to the father’s violence. In particular the documents produced by the Department of Community Services record that as at the beginning of 2007 they were concerned about the oldest child’s exposure to family violence. The record of interview dated 27 February 2007 is quite revealing in this regard. The father denies the allegations and describes those who made them as “evil people” but interestingly the mother acknowledges the violence and controlling behaviour but seeks to minimise it and place it in the past. I acknowledge that the father was not specifically cross-examined about this document and thus less weight can be attributed to it. Nonetheless, it is still broadly corroborative of the wife’s evidence.
The father’s evidence
As previously indicated the father relied on four affidavits, all of which had been prepared by his previous solicitor. He deposes to his involvement in the care of the children as well as the involvement of police which he regards, for all practical purposes, as the result of the unnecessary and mischievous actions of the mother, though this is my interpretation and not what the father himself said. For example, at paragraph 22 he deposes to one of the officers of the Department Community Services saying to the mother through an interpreter on 26 March 2007 that she should not make false reports.
Curiously, the records produced by the Department became exhibit R4, and includes a transcript of the visit on 26 March 2007, which makes no reference whatsoever to the father’s assertion at paragraph 22 of his affidavit. Indeed, the events that the father refers to at paragraphs 21 – 22 of the affidavit filed 1 October 2009 are more likely to have occurred on 27 February 2007, but again there is no reference whatsoever to the warning against making false allegation which he asserts.
At paragraph 24 of the affidavit he deposes to events on 20 October 2007 involving a verbal argument with the mother during which he asserts that the mother threatened to kill his daughter by drowning her. Curiously, the police report of this event makes no reference to this, even though it is such a serious assertion which one would have expected to have been recorded by the police, had it been reported by the father.
The father gave oral evidence and was extensively cross-examined by the solicitor advocate for the mother, and Counsel for the Independent Children’s Lawyer. I formed the view that he was an unimpressive witness who, whilst being extremely polite and deferential for most of the time, was nonetheless often argumentative with those seeking to cross-examine him, unresponsive, and sometimes uncooperative. The nadir of the father’s evidence occurred during some short, discrete, episodes when he was exceedingly rude to Ms Shea, the mother’s advocate, often disrespectful and at times nearly abusive of her.
I warned him about his behaviour on a number of occasions. Just before lunch on 26 October 2010 the father lost his temper with Ms Shea, raised his voice, pointed his finger at her and said words to the effect: “you are an evil woman,” “you are an animal” and “stop abusing my children.” In each case the father quite quickly regained his composure and returned to being deferential. Unsurprisingly, the submission was made that these outbursts by the father gave an insight into his real character and temperament, as well as being indicative of his attitude towards women.
Before turning to the substance of the father’s evidence, I find that the manner in which he gave his evidence was less than satisfactory and I was left with the profound impression that his deferential demeanour was not necessarily the father’s true persona.
The father was cross-examined about the circumstances of the [B] Contact Centre suspending their services. In short, the centre suspended their service arising out of an incident that occurred on
16 May, 2010. Exhibit R10 contains a letter of 21 May 2010 explaining the basis of the decision. It explains, for example, that the father had breached the terms and condition of the use of the contact service by attending outside agreed appointment times, by seeking personal contact with the other parent outside the premises, by making threats towards the other parent, and by displaying behaviour perceived as threatening or inappropriate. The events of 16 May 2010 are set out in quite considerable detail in the affidavits of the mother, her sister and nephew, and the father.
There is corroborating evidence in the form of police statements, medical records, and a record from the contact service itself. In short, the father asserts that he was assaulted by the mother’s sister and nephew and that any response by him was in self-defence. Indeed, in cross-examination he described the incident as one in which he was a victim of a trap that had been set up, presumably by the mother.
The father’s evidence on 25 October was that he had been charged with assault of the aunt and nephew as well as a number of ancillary charges, but that he was intending to plead not guilty when the matter came before [B] Local Court later on that week i.e. 29 October. However, the evidence of the transcript of the proceedings before Swain LCM on Friday, 29 October 2010, exhibit R12, indicates that the father pleaded guilty to the assault charge. He was convicted and ordered to enter into a good behaviour bond for a period of two years on certain condition including reporting to probation and parole and dealing with anger management issues. In addition, a domestic violence order was made for two years.
I must say, I find it extraordinary that within the space of a week the father would go from such a striking denial of the events to a plea of guilty. I completely accept that a plea of guilty does not necessarily indicate a complete acceptance of the facts as asserted, in the criminal proceedings. Indeed, I do not have before me the facts asserted in the criminal proceedings, thought I do have in evidence the statements given by the mother, her sister and nephew in those proceedings.
Putting aside the criminal proceedings for one moment, the father did not challenge the evidence given by the mother, her sister and nephew about the incident outside the supervised contact centre. I find the incidents to have occurred as alleged by the mother, her sister, and nephew. I do not accept the father’s evidence that he acted in self defence or that he was the victim of some elaborate trap laid by the mother, possibly in alliance with her sister. I find the father’s violence, perpetrated against the mother’s sister and nephew to be appalling.
The mother’s sister deposes to the father crossing the road over to the car in which she was sitting, calling her a prostitute, punching her through the window with a closed fist on the right side of her face, grabbing the back of her hair and punching her head four or five times, kicking her whilst she was on the ground and holding her there until she managed to escape, after which he chased her around the car four or five times.
The father’s action outside the supervised contact centre are clearly unacceptable. The assault was a violent one and indeed Swain LCM described the offences as being “very serious.” They took place in front of the mother. The events took place outside of a supervised contact centre which, by its very nature, was designed to be a safe place for parents to implement contact arrangements. The events took place during the course of family court proceedings at a time when the father knew, or should have known, that all of his actions would be closely scrutinised in subsequent proceedings. Indeed, the events took place five months before a final hearing and in the context of a case where the father was already facing serious allegations of violence against him.
Despite all of this, the father’s evidence to me in cross-examination on 25 October was that he was a victim of the events in question, that he acted in self-defence, and that it was an elaborate trap set by the mother.
In cross-examination the father was confronted with a number of assertions which he strenuously denied, despite the existence of contrary business records. For example, it was put to him that when supervised contact first started in December 2009 he said to the supervisor that he only wanted to spend time with his eldest daughter, and that [Y] needed his mother. This was put to the father on the basis of the documents produced by the supervised contact service, as business records. He described this as a lie, that he had never said it, and that somebody had made up that comment. The father’s evidence in this regard is particularly curious because he had earlier indicated that he had such a good relationship with the staff of the supervised contact centre.
The second example arises out of an incident when the police were called to the house and where, in his affidavit, he asserts that the mother had threatened to kill the eldest child. It was put to the father that he did not tell the police about this. He insisted that he did tell the police about the mother’s threats, and that they must have forgotten to write it down. Indeed, he went on to explain that in Australia when a mother makes an assertion it is written down, but not what a father says. It was put to the father that he was making up this allegation, which he disagreed. It is hard to believe that if he had made such an allegation, it would not be recorded given its seriousness. Once again, I prefer the business record over that of the evidence of the father.
The third example of inconsistencies between the father’s evidence and business records, relates to notes made by Dr T on 10 March 2009, which were produced to the court. This arises out of an incident that occurred on 9 March 2010. The father was extensively cross-examined about this. He agreed that this incident resulted in the mother leaving the home.
He denied verbally abusing the mother and insisted that “she was bullying me and I tried to get away from her.” He denied that he physically assaulted her. At first he said he could not recall whether the children were in the house at the time, but then conceded that they were. He denied that the mother screamed for help, but could not recall whether she took the children into the bedroom. He denied that the children were crying. He denied that when the mother tried to call the police he broke the telephone. He denied perpetrating violence against her, insisting that her story was “all a big lie.” He insisted that, in fact, she had assaulted him, and not the other way round.
When it was put to him in cross-examination that the wife fainted at some stage, the father laughed and said words to the effect: “No, it’s funny. I did nothing to harm her.” He explained that, in fact, the mother assaulted him, she assaulted him, she got angry and that he tried to calm her down. The father was then taken to the notes and report prepared by Dr T following the mother’s attendance on her the next day, 10 March 2009. He explained that he had seen the report, that the doctor was a close friend of both of them, and that the mother had misled the doctor. He was taken to the parts of the report in which the doctor records that the mother had lost her voice, was in tears, had a bruise on her lower lip, had mild soft tissue injury, as well as swelling on the left cheek.
The father replied that most of that was untrue and that the doctor just wrote what the mother said to her. He described as a lie any assertion that the mother was observed to have bruises on her lower legs. The father insisted that the mother had misled Dr T who was otherwise a close friend. This is now the third business record, created by a person who the father describes as a respected close friend, which is clearly inconsistent with the father’s assertion about events, but clearly consistent with the mother’s version.
The father was cross-examined about his relationship with his youngest son, [Y]. He agreed that on 4 July 2009 he was having problems with [Y] and returned him to the mother’s care earlier than was agreed. It was put to him that on 18 July 2009 he refused to take [Y]. He insisted that that was not the effect of what occurred and he just told the mother that he needed help from her in caring for him. It was put to him that during a second visit he only took his daughter.
The father’s relationship to [Y] is an issue in this case. On the one hand, the submission was made that there is no meaningful relationship between [Y] and his father because of his age, his developmental difficulties, and the length of time that he has not had contact with his father. The difficulty with this assertion is that the documents produced by the contact centre describe very positive interactions between [Y] and his father. The situation is not as clear-cut as the mother’s case would suggest. Notwithstanding this, there are a number of interesting interactions in cross-examination that provide some insight on this issue. For example, when he was being cross-examined about issues relating to his mental health on 26 October 2010, in denying that there were any issues about his mental health, and that there was no need for him to see a psychiatrist, he said: “I love my daughter” – a somewhat odd statement not just in the context, but because there was no reference to [Y], his son.
At another point in cross-examination, this time in the context of the incident outside of the family relationship centre it was put to him that it was not appropriate for him to try to photograph the mother’s nephew. He explained, “I was concerned for [X],” his daughter. Again, this is an odd comment in the context, but notable because of the absence of reference to [Y].
I was not entirely satisfied that the father had done all things he possibly could to familiarise himself with the nature of the conditions that [Y] suffered. And there are, at least, unresolved issues about the father’s capacity to meet [Y]’s special needs. The finding is open that the father’s attitudes to [Y] are at least ambivalent, and not necessarily on the same level as his feelings about his daughter.
In cross-examination the father was asked questions about his plans to remarry. Whilst expressing that he didn’t know, he acknowledged the possibility of future marriage. He then agreed that in July 2010, whilst in Vietnam, he met someone who he might marry, though there was no present intention. Curiously though, at paragraph 3 of his document entitled “My Reasonable Requests” (see the schedule to these reasons) the father asserts: “In the near future, I will have more children of my next marriage.” I am far from satisfied that the father has been full and frank in his disclosure to the court about his future family arrangements.
The father was systematically confronted in cross-examination about the mother’s family violence allegations against him. He was, at the very least, consistent in his denials. However, he provided no alternative explanation and often went on the offensive. For example, he often accused Ms Shea, and presumably the mother, of making up “a lot of stories.” He often told Ms Shea that her client, the mother, was misleading her. He didn’t dispute that the mother stayed in a Women’s Refuge in 2006, explaining that “she had the right to go.” But he explained that he did not know why she left and described the allegations about throwing a two-litre Coca-Cola bottle as the wife making things up.
Nonetheless, he agreed that the police had been called to the home not less than eight times during the period of co-habitation, and possibly as much as 10 times. Notwithstanding this, there was no domestic violence and he insisted that the police called the mother an “evil woman,” a matter that is clearly not recorded in any record produced by the New South Wales Police. He agreed in cross-examination that he had been in gaol four times arising out of what he described as false allegations of the mother.
The father often described himself as a victim, both of the mother’s actions, and of her sister’s actions. In reference to some of the mother’s allegations he asserts that she attacked him. Referring to an incident on 9 April 2008, the father was given the opportunity to comment on the police records that described what they saw on attending the residence and seeing the mother sitting on a couch, visibly distressed. His response was that the mother “laughs and cries just like an actor in the movies” and that he did nothing to hurt her. He explained that “I am not a troublemaker. I am a victim.”
It is important to record that throughout this cross-examination the father was often rude, and unresponsive to Ms Shea. In cross-examination it was put to the father that he was violent towards the mother. He explained that “I am a victim of domestic violence. My sister-in-law assaulted me many times, and members of her gang. She is a ring-leader of her gang.” The father was cross-examined about the mother’s allegations of sexual violence and his response was that this was “a funny story” and that he denied doing that which was asserted.
The father was cross-examined about the police record of an assault allegedly perpetrated by him against a woman by the name of Ms T on 19 July 2000, which led to a conviction on 14 December 2000 for assault occasioning actual bodily harm. The business records produced by the New South Wales Police indicate that on 19 July the victim
Ms T attended [suburb omitted] police station with minor lacerations, bruising to her neck, and swelling to her left cheek bone. She informed police that she had been assaulted by the father the previous evening at the family home but desired no further action other than that he be removed from the home.
The record indicates that the father was contacted and agreed to attend the station where he was spoken to in relation to the allegation. The record indicates that he did not deny or admit the complaint of the victim but stated that she had been unfaithful to him. The victim provided police with a signed statement in which she claims that he had strangled her and threatened her with a machete. She stated further that this type of violence has a history of about six months and that she is currently five months pregnant and that the assault the subject of this charge was so severe that she passed out on a number of occasions. The record states: “Police not only hold fears for the victim but also for her unborn child. The victim indicated that at the time of the assault she feared for her safety and that she still holds that fear. The defendant is physically larger than the victim. Police noted that the defendant was easily angered and became aggressive when talking to them. A telephone interim order has been applied for and was granted. This order is in force until 4 August 2000. The defendant was charged.”
The records produced by the New South Wales Police indicate that on 14 December 2000 the father was convicted of assault occasioning actual bodily harm and was sentenced with a two year bond with various conditions. Interestingly, Magistrate Swain, who dealt with the father’s assault charges on 29 October 2010, refers to the fact that the father had “a matter of violence on your record from 2000,” which clearly seems a reference to this.
What was the father’s reaction to all of this? He said that he did not recall any of these events. Indeed, he did not accept that he had been convicted. He insisted that this had nothing to do with him, that he knew nothing about this and once again described the reference to his involvement with another woman, Ms T, as “a funny story.” During this cross-examination I noted that the father was being argumentative, once again.
I conclude that the father was being quite disingenuous in his evidence about the assault and the charge in 2000. There is evidence to indicate that he was violent towards another woman. His denials are completely unconvincing in the face of the business records. The records plainly indicate that it was the father who was involved in these events, and charged.
The father was cross-examined about the supervised contact service’s records that indicate that on at least two occasions he arrived early, contrary to the agreed terms and conditions of participation. Indeed, the records clearly indicate this, the second incident being the day of the assaults outside the centre, which eventually led to suspension of the service. The father disagreed that he had breached the guideline and insisted that he had right to stay in his car and observe his wife from a distance provided it was more than 500 metres. He asserted that the supervised contact service’s records were wrong insofar as they suggest that he was there 15 minutes early. Again, I prefer the business records to the evidence of the father.
When the father was being cross-examined by Ms Castle, Counsel for the Independent Children’s Lawyer, he was clearly more subdued. He was asked whether he agreed that he had anger management issues. He responded that “sometimes, but I am still a normal man. I have no mental problems. I am a human being.” He acknowledged that he got angry before lunch on 26 October 2010 in his exchange with Ms Shea and he said that he was “very sorry for that,” that he apologised, accepted responsibility, but said he was not a hot-headed man. Ms Castle put it to the father that from time to time he got angry quickly, just like he did before lunch. The father agreed, but suggested it was not really serious, especially given that what was being put to him was so untrue. He agreed it would be useful to get help for anger management issues and would comply with an order in that regard.
I must record that the father did make some sensible, appropriate concessions. For example, he agreed to the mother’s proposal for a change of [Y]’s name. He agreed that the children’s name could be taken off the watch list, and that they could travel with the mother to Vietnam from time to time, provided it was not for longer than one month. He agreed to return to the mother his daughter’s passport.
At the end of the father’s evidence I formed the strong impression that he did not believe that there was any reason for his contact to be supervised, or that the mother had any reason to be afraid of him. This is somewhat hard to understand in the context of the position that he adopted of supervised contact.
As I have foreshadowed, I have formed quite a negative view of the father’s evidence. Where it conflicts with the mother’s evidence, I prefer that of the mother. Where the father’s evidence conflicts with that contained in business records or documents prepared by independent persons tendered during the course of the proceedings I prefer the latter. He was often evasive, unresponsive, uncooperative, argumentative, and sometimes abusive.
He demonstrated “live” in Court that he could be aggressive, and hot tempered and act in ways that even he concedes were inappropriate. The most outstanding aspect of the father’s evidence is his strident denials of the allegations of violence, and protestations of innocence, despite the formidable evidence to the contrary that confronts him. The father genuinely believes he has done nothing wrong. He genuinely believes that supervised contact is unnecessary. He genuinely believes that the mother has no reason to fear him. It is all the more difficult to understand the position that he adopts in these proceedings.
I find that the father has perpetrated serious family violence towards the mother, often in the presence of the children. He has expressed no contrition or remorse in relation to the same. He believes himself to be the victim, rather than the perpetrator. He showed no insight whatsoever into the impacts on the children of the violence perpetrated by him towards the mother.
The evidence of the family consultant
A family report was prepared by family consultant Ms B on 16 April 2010. One of the most significant features of this report is the numerous references the family consultant makes to the allegations of family violence. What the mother reported to the family consultant is consistent with her other evidence, and the father’s absolute denials of the allegation are also consistent with his evidence. These allegations are summarised at paragraph 40 of the report where the family consultant states:
40. Ms Nhan describes a very serious history of violence towards her by Mr Trinh and which is alleged to have involved financial, sexual, physical, verbal and emotional abuse over an extended period of time. According to her history, the children were placed at risk in a number of ways by Mr Trinh such as by being exposed to possible injury (in utero and thereafter), damaging role modelling and experiencing trauma. If this is the case, short and long term negative effects to their development can result.
41. The family consultant goes on to make the following statements:- Ms Nhan is the children’s primary attachment figure. Threats to her well-being would cause the children to be fearful of both her and their own well-being. Ms Nhan says that violence and threats by Mr Trinh led to her feeling suicidal during her first pregnancy and this would also have a very serious negative effect on the children should this ever recur.
42. Mr Trinh totally denies the existence of any violence in the home but it appears likely that he has minimised the marital conflict. The fact that police attended a number of times suggests that there has been volatile and highly charged emotional circumstances that the children have been exposed to a number of times. Highly charged emotional atmospheres, and/or exposure to violence, can cause young dependent children intense physiological and emotional arousal which, especially if it occurs frequently or chronically, can negatively effect their psychological and physical development.
43. If evidence suggests that Mr Trinh has been violent and threatening, his apparent lack of recognition of how the children may have been affected could increase the risk of them being exposed to harm in the future when in his care. Other records are important for the Court to examine as, if evidence suggests there has been serious or chronic family violence, offending parents are at risk of utilising their contact with children as a means of maintaining a relationship with their former partner in a manner that has damaging consequences for children.
It is quite clear that the family consultant is unable to make specific recommendations about contact in the absence of clear findings about the violence allegations.
At paragraph 19 of the report there is a record of the mother’s disclosure of being suicidal during her pregnancy her daughter:
19. Ms Nhan stated that she was suicidal during her pregnancy with [X] because of the violence, problems in the marriage and the thought that there was no other escape or remedy. She made threats to Mr Trinh of killing herself (and the baby whilst in utero) but she said that since [X] was born that she has not considered harming herself because of her love of, and commitment to, the children. Ms Nhan states that during arguments with Mr Trinh she has bitten him.
Material produced by the Department of Community Services confirms this, but they eventually closed their file on this issue. In the file there are references to the mother suffering postnatal depression, and the Department’s impression that this was a transient matter. But certainly there is no other evidence before the Court of the mother being a risk to her children, in any way, and it was not a matter raised by the father.
A disturbing allegation is found at paragraph 20:
20. Ms Nhan alleged that [X] began mimicking her father by raising her hand as if to hit when she ([X]) was angry. She also stated that [X] returned from a visit with her father and spat on her maternal aunt. Ms Nhan believes [X] was taught to do this by her father and that this, along with being told that Mr Trinh exposed [X] to foul language during an outing in 2009, led to her suspending his visits with the children. Ms Nhan said that, recently, when Mr Trinh saw the maternal aunt holding [X]’s hand, he approached them angrily and sought to take [X] away.
The mother’s assertion in this regard is also contained in her affidavit. But in cross-examination the father strenuously denied that he was responsible for this. Having regard to the findings of fact, and credit, that I have made in discussing both the mother’s and the father’s evidence, I accepted that on the balance of probabilities that the oldest child [X] probably was mimicking her father’s behaviour, actions and attitudes. This is a most disturbing feature of the case.
The report records the father’s attitude towards the marriage. For example at paragraph 24 he described the marriage as “very happy.” At paragraph 25 he iterated the belief that the children did not need to be subject to supervision. He said that “he loves his daughter very much” but that she is “like her mother in the way she likes to grab toys and is rather selfish with material objects.” Again, I find these comments quite disturbing, in the context of a case where the evidence leads to clear findings about the father’s violence, abuse, and controlling behaviour.
At paragraph 26 the father, in my opinion, demonstrates some of what I have described as his ambivalence towards his son [Y]. For example, “he has not formulated plans and hopes for [Y] because the future is uncertain.” He clearly expressed a view to the family consultant that his son’s development problems were attributable to actions of the mother, and specifically her arguing with his sister. Again, this was the subject of cross-examination of the father. This apparent belief of the father reflects very poorly on him, particularly in a case where he had available to him quite substantial medical evidence about his son’s condition. His illogical, indeed irrational belief about the cause of his son’s illness is, he asserts, based on what a doctor said to him, but there is no evidence to support this, and indeed ample medical evidence to suggest that [Y]’s condition has a genetic basis. The father’s attribution of fault to the mother, even for his son’s medical condition, is yet another disturbing feature of this case.
One of the features of this case that makes a final decision so difficult is the family consultant’s description of the interaction between the children and their father. Consistent with the notes produced by the supervised contact centre, it is clear that the children have good interactions with him, and to this extent it demonstrates good, sound, relationships.
At paragraph 44 of the family report the family consultant states:
44. Mr Trinh was attentive, warm and responsive when observed with the children but such observations do not necessarily exclude him having volatile reactions when in a heightened emotional state. While it is clear that Ms Nhan is [X]’s primary attachment figure, she had good quality interaction with her father. While Mr Trinh may consistently provide the children with appropriate care and attention in the future, it is nevertheless suggested that significant weight is not placed on this observation in trying to determine this and future risks to [X] and [Y]. Young children tend to be responsive to immediate situations around them and do not have the cognitive or language skills to communicate the gamut of their experiences.
This is an important part of the family consultant’s evaluation and it confirms in my mind that I cannot place too much weight on the evidence of the good interaction between the children and their father. Whilst in other cases such interaction may well be determinative, in this case, there are other considerations.
At paragraph 45 the family consultant deals with the father’s negative views about the mother and her family:
45. Mr Trinh has very negative views of Ms Nhan, her mother and her sister. Although he denies having exposed the children to denigration of their mother or her family, the strength and intensity of his negative views of them increases the risk the children will be exposed to, or not adequately shielded from, his views about people who are important to them.
The family consultant’s concern about the children being exposed to the father’s negative views about the mother are reiterated at paragraph 47:
47. At this stage Mr Trinh wants to be able to take [X] on outings and see [Y] when he picks up and collects [X]. If, however, as Ms Nhan alleges, Mr Trinh exposes [X] to denigration of her mother and family, this would be damaging and could occur within short unsupervised visits. If this is the case, non – denigration orders may assist to protect her.
This paragraph again reflects what I have described as the father’s ambivalence towards his son [Y] in that he clearly contemplates different parenting arrangements in respect to the children. I think a strong inference can be drawn that the father is, at the very least, unsure about his capacity to meet [Y]’s special needs. The family consultant discusses this at paragraphs 48 and 49:
48. Mr Trinh appears less bonded to and confident with [Y] than he is with [X]. It is suggested that Mr Trinh not be obliged to care for [Y] against his will as it could lead to [Y]’s needs not being adequately met. Ms Nhan appears to have clearer expectations and understanding of [Y]’s development and prognosis at this stage. It is difficult to predict how Mr Trinh might adjust and cope with disabilities which [Y] may have in the future. If, however, Mr Trinh does not spend time with [Y] nor be involved in his development and/or therapies from an early age their relationship may not develop closeness and affinity and this will negatively affect [Y].
49. If [X] and [Y] do not share the same parenting arrangements there is a possibility that they will have somewhat different experiences of their relationships with their parents. At this stage it is unclear how [Y]’s cognitive capacity will develop and what the effect on him would be if he and his sister had different parenting arrangements.
Another important part of the report is paragraph 50:
50. It is very important that Ms Nhan, as the parent both children are most dependent on, feels secure and supported, as she is the children’s primary source of security, confidence and care. It is important that parenting arrangements do not provide an arena for parental conflict and or incident, therefore, if supervision of Mr Trinh’s time with the children is deemed unwarranted, then it is suggested that a contact centre continue to be utilised for changeovers of care of [X] or [X] and [Y].
This emphasises to me the need to adequately protect and support the mother in terms of her parenting, given that she is and will continue to be the children’s primary source of security.
The reference to the use of a supervised contact centre is noteworthy. About a month after the report was prepared, events outside a supervised contact centre demonstrate the father’s capacity to create “an arena for parental conflict” even in what is supposed to be relatively safe haven of the supervised contact centre.
Ms B’s recommendations are contained at paragraphs 51-56:
51. It is recommended that further evidence, such as medical and police records, be examined to further assess the possible risks to the children.
52. It is recommended that Ms Nhan have sole responsibility for decisions regarding the children’s education and medical treatment but that she have responsibility to keep Mr Trinh informed of important matters related to the children and the health professionals they may be involved with.
53. It is recommended that Mr Trinh consult with a nominated health professional who is involved with [Y]’s ongoing therapy and assessment.
54. It is recommended that consideration be given to Mr Trinh attending certain therapy sessions with [Y] but that parenting arrangements in relation to [Y] not otherwise be finally determined at this stage.
55. It is recommended that Mr Trinh be able to take [X] to Vietnamese language, or other classes or on short outings, unless evidence suggests she may be exposed to denigration of family members, poor role modelling and is unlikely to be adequately protected by non-denigration orders.
56. It is recommended that Ms Nhan be able to take the children to Vietnam unless the Court perceives a risk that the children would not return to Australia.
Ms B was cross-examined by Counsel for the Independent Children’s Lawyer, and the advocate for the mother on the first day of the hearing. Whilst the father had no questions of the family consultant, I am more than satisfied that all of the relevant issues were raised with her by Ms Castle, and Ms Shea.
In cross-examination the family consultant explained that she could not come to a concluded view about the contact arrangements because the father had denied all the mother’s allegations. Nonetheless, she thought that the mother’s presentation of information in relation to family violence was consistent and detailed, and thus her version had a sense of cohesiveness. She also felt that in terms of her descriptions of the events, and the consequences of the same, she was much more aware of how the children were affected, eg, by the police entering the home.
Ms B was asked to assume that the mother’s allegations were found to be established and to comment about the same. She explained that if the allegations were as asserted, that the father’s denials and minimisations of the same become a significant concern in terms of the level of danger or risk to the children, even if they were not directly the subject of the violence. She explained that even observing the family violence puts them at risk. If she stated that if the father is in denial it becomes difficult for him to get assistance. If the mother’s version is correct, the father demonstrates no insight about the impact of this on the children.
The family consultant was asked to comment on whether there is an increased risk of violence towards the children, in a situation where there has been violence to a partner. She explained that research indicates that children in violent relationships face greater risks in many ways, e.g., emotional disturbance, physical injury, and relationship problems.
She was examined about the issue of [Y]’s developmental needs. She described her understanding of [Y]’s medical condition, based on the documents made available to her, and based on her own observations, as being profound, non-reversible, developmental problems which significantly increase his level of dependency. Based on her interaction with the father, the family consultant believed that he had very little awareness of the extent of [Y]’s problems, and the level of hopefulness for recovery that may well be unrealistic in the circumstances. [Y]’s developmental disabilities make him especially vulnerable to family violence, and indeed sensitive to any other circumstance that surrounds him. His physical disabilities mean he has no capacity to remove himself from situations. [Y]’s special needs mean that he will be physically and emotionally demanding in terms of parenting. This could cause frustration at times as well as intense feelings of anger and grief.
Ms B was specifically asked to comment whether, if the mother’s allegations of family violence are correct, there would be heightened risk of harm to [Y] in the father’s care. She thought that this was the case. She explained that children with disabilities are often perceived as not being affected by certain things happening around them, but in reality stressful emotions can be triggered which creates intense psychological pressures as the child is not able to escape from the situation because of their disability.
Ms B was made aware of the incident outside the family supervised contact centre, after her report had been prepared. She was concerned that even in the structured situation such as a supervised contact centre there was a situation that put others at risk. She observed that even though the children were not directly exposed to the violence, the mother’s physical and emotional state, which was clearly apparent from hospital notes, would have made the children very much aware of what had happened. In short, these children became exposed to the father’s violence because of its impact on their mother. She acknowledged the difficulty confronting the court in finding any other setting for changeover, if a supervised contact centre was not in itself adequate.
It was put to Ms B that perhaps the children are not old enough to understand the reasons for the mother’s stress, and that it is related to the father’s family violence. Ms B seemed to be of the view that it still impacts on the children who can pick up their mother’s distress. For example, even in the context of [Y], it distracts him from concentrating on developmental tasks. In any event, all of this places greater stress on the mother and makes it even more difficult for her to parent.
The family consultant was also concerned about the father’s negative views about the mother and the women in her family. She described this as a general theme of disdain towards the maternal grandmother and aunt and she was specifically concerned at the father’s descriptions of his daughter as having some of the negative attributes of her mother. Ms B warned the dangers to the children of being exposed to negative views about the mother, the confusion that would occur as well as the undermining of their relationship with their mother.
The family consultant was asked to comment on what was, in effect, the incomplete history of violence during the relationship given by the mother. She explained that this was certainly not uncommon, as it was also not uncommon for reports to be made but charges not to be pressed because victims often act in ways to de-escalate or certainly not inflame problems.
The family consultant was asked to consider the impact on the children of an order for no contact, as well as an order for supervised contact. In relation to [Y], Ms B explained that it is difficult to predict because of his low level of cognitive functioning, but she did say that there appeared to be a low level of attachment between [Y] and the father, probably attributable to his young age, and the separation. Accordingly, [Y] would probably have no grief or loss in the short term. In the longer term, the impact of no contact would depend upon the level of his cognitive functioning. In relation to [X], in the short term she would probably feel either scared or anxious about contact, depending upon how much she knows. If there is no contact, in the longer term she probably won’t experience immediate grief or loss due to the length of time that there has been no contact, but in the longer term she will have a lot of questions about the absence of her father in her life. Indeed she might feel like there is something missing in her life, though this might be dealt with by the mother. Nonetheless, if a child has a stable, long-term relationship with at least one parent, they will achieve most of their developmental milestones.
The family consultant was asked whether the father was vigilant about protecting the children from his negative views about the mother and her family. She explained that in a context where the father was so adamant that he had not done this, he was clearly not vigilant. This led to questioning about the extent to which the father’s denials of family violence should be of concern in this case. The family consultant stated that his denials increased the risk of the recurrence of family violence. His attitude suggests that this is not something that is important to him, and thus puts the children at risk. She agreed that without recognition of past family violence and its consequences, he was unlikely to change. Thus, there would be a number of risks if contact were to be unsupervised.
The family consultant was questioned about long-term supervised contact, and whether this could be in the best interests of the children. She accepted that it would be difficult for the children in this framework, but it maintains a minimal relationship between the children and their parents. This was a particular issue in this case because of the young age of these children. She agreed that given their ages, supervised contact did not provide for the substantial involvement in the life of a child that underpins meaningful relationship. This was, of course, exacerbated by the fact that the children have not seen their father for six months.
The family consultant was also concerned that if a supervised contact arrangement was implemented, but not sustained, it would be detrimental to the children, especially for [X] who she would expect to be anxious and nervous. The family consultant agreed that given the facts of this case there was a real potential that an incident at a supervised contact centre could recur, which could lead to suspension of the service.
The family consultant was examined about the impact of contact on the mother. She agreed that it would cause the mother considerable stress and anxiety, that she is a vulnerable woman due to past events, that her emotional resources would be further stretched particularly taking into account [Y]’s special needs, and that she is in any event a woman who is already socially isolated because of her circumstances. There was what I considered, a clear warning of the potential adverse impact on the children if the mother’s resources were further depleted.
The family consultant ultimately agreed that it was perhaps the case that the benefits of long-term supervised contact to these children was outweighed by the risks of the adverse impact on the mother’s parenting, the risk of recurrence of problems, and the possibility that such an arrangement could not be sustained in the long-term.
I unequivocally accept the evidence of the family consultant. Her evidence confirms the seriousness of the concerns inherent in attempting to facilitate an ongoing relationship between the vulnerable children of a vulnerable mother and a violent, abusive and controlling father who does not accept that he has so behaved, let alone its consequences on the mother and children.
Meaningful relationship
Under this heading I intend to consider the first of the primary considerations as well as the second of the additional considerations.
Whilst there is evidence in the form of the notes produced by the supervised contact service, and the observations of the family consultant in the family report, of positive interactions between the children and the father, nonetheless I accept the caveat in the family report. As the family consultant stated at paragraph 44 of the family report, young children tend to be responsive to immediate situations around them, and do not have the cognitive or language skills to communicate the gamut of their experiences.
In the context of this case I interpret this to mean that the positive observations noted during a number of relatively short, discrete meetings between the father and the children, do not necessarily provide evidence of the nature of the relationship between the father and these children. The issue needs to be seen in the broader context of a case where I have made clear findings about family violence over a sustained period and in a context where the father resolutely refuses to accept that he has perpetrated this violence, or its impact on the children. Moreover, he has had no contact with these children for over six months now.
In the Full Court’s decision in McCall & Clark (2009) 41 FAMLR 483 at paragraphs 108 – 122, their Honours discuss the meaning of the concept of meaningful relationship. They clearly endorse what they describe as the prospective approach, ie, that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interest, orders can be framed to ensure the particular child has a meaningful relationship with both parents. Clearly, there is no presumption of a meaningful relationship. The Full Court states that the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. They expressly acknowledge that there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
There are a number of significant and, as it turns out, insurmountable obstacles, for the father to satisfy me that there is a benefit to the children of having a meaningful relationship with him, even if I were to accept (hypothetically) that a meaningful relationship currently existed. For as long as the father maintains an abject denial of the family violence he perpetrated, and a steadfast refusal to acknowledge the potential consequences on his children, I can see no benefit to them of having any relationship with him. For as long as he continues to expose the children to his negative views about the mother, and her family, I can see no benefit to the children of having a meaningful relationship with him. At the present moment, there is nothing in the evidence to provide any hope or expectation that the father will change his views.
Nonetheless, the issue of meaningful relationship needs to be determined in the context of the proposals advanced. I categorically reject any proposal of the father that involves unsupervised contact, in the circumstances of this case, and for the reasons I have articulated above. That leaves open for consideration the supervised contact that is contemplated by both the mother, and the Independent Children’s Lawyer. After careful consideration, I have, not without some regret, rejected any form of supervised contact as an option in this case.
Given the father’s attitude, and the history of a violent incident outside the supervised contact centre, I have real doubts about supervised contact, on a number of levels. Firstly, as a general proposition, supervised contact on a long-term basis is fraught with difficulty from a logistical perspective.
Secondly, there must be real doubts about the willingness of any service provider to provide any form of supervised contact service given the history of this case, particularly if they were to receive a copy of these reasons for judgment, a request which would be fully understandable in the circumstances of this case.
Thirdly, as the family consultant has explained, there are the questionable benefits to the children of an arrangement that sees them spending time with their father on a supervised basis, from time to time.
Fourthly, I accept that the evidence indicates that, in the circumstances of this case, any form of contact or communication with the father would provide an unacceptable level of stress on the mother in a situation where she is already vulnerable.
The mother’s alternative proposal is for what amounts to recognition contact. This was an issue that was explored by the Full Court in Osckar & Sankey [2007] FamCA 814, an appeal from a decision of his Honour Mullane J. As Ms Shea submitted to me in her closing submissions, there are some interesting parallels between that case, and the present one. As Mullane J noted at paragraph 222 of his reasons, the situation confronting this court (as well as in his case) is that the father does not have insight into his behaviour problems and does not recognise that his behaviour was abusive of other people including the mother and members of her family. He does not acknowledge that his behaviour is a problem. Moreover, and in some respects like the matters referred to in paragraph 242 of Mullane Js reasons, there are real doubts on the present facts about the father’s capacity to comply with court orders that are designed to protect the mother from abuse by him. The comparatively recent incident of the supervised contact centre, is ample evidence of this. Again, I reiterate that I find the father’s violence outside the supervised contact centre towards the mother’s sister to be appalling. His history of involvement with the supervised contact service indicates an inability to comply strictly with the terms and conditions of usage. He fails to appreciate the inherent dangers of attending the supervised contact service prior to the stated time.
Protecting the children from harm
It logically follows from the matters that I have referred to above that I unequivocally accept that there is a risk of harm to the children arising out of contact or even communication with the father. Thus, there is the need to protect them from both physical or psychological harm because the evidence indicates that there is a real risk that they would be exposed to family violence. If these children cannot be protected from family violence at a supervised contact centre, then how, or where, can they be protected? Moreover, there is the risk that the father would use any time he has with the children to denigrate the mother or members of her family and thus undermine the children’s relationship with their mother. In my opinion, none of the proposals advanced to the court, apart from a no contact order, satisfactorily addresses the concern about protecting the children.
I fully recognise that a consequence of my findings so far is that the father will have no contact or communication with the children. The evidence of the family consultant indicates that such an order is unlikely to pose any short-term emotional problems for the children. In the longer term, the impact on [Y] is very much dependent upon his development. There is a risk that a no contact order will, from [X]’s perspective, create a significant gap in her life. This, of course, is an adverse consequence of the order. I am satisfied, however, that the mother will not seek to denigrate the father in the children’s eyes. As I have previously indicated, the evidence she gave of her continuing love for the father, but her inability to continue a relationship because of his actions towards her, was very powerful evidence which reassures me that she will not seek to demonise the father in the children’s eyes, even as they grow up.
There are, of course, positive benefits to the children of a no contact order. This will prevent them from being further exposed to conflict between their parents. It will protect them from the father’s denigration of the mother, and undermining of her relationship with the children. It also protects them, just in case there are unresolved issues about the father’s mental health, even if I can make no specific findings in this regard. A no contact order also provides the benefit to the children of having a mother whose parenting capacity is not diminished by having to cope with the inevitable ongoing issues about the contact and communication with the father which is a concomitant of a contact order.
Other additional considerations
In view of the findings I have made in relation to the primary considerations, I will not deal with additional considerations at length. Because of the children’s ages, their views are not relevant. I have already discussed the nature of their relationship with their father. Clearly the children enjoy a close, dependent relationship on their mother, and they appear to have close relationships with members of the mother’s family who have, hitherto, supported her in parenting. On the facts of this case, I am not prepared to be critical of the mother in terms of her reluctance to facilitate contact. The children have not seen their father now for over six months so a no contact order brings about no change. In any event, if I were to make a contact order, even a recognition contact order, I would be very concerned about the impact of this on the children, and particularly [Y], who the family consultant believes to be anxious about contact.
If I were to order supervised contact on a sustained basis, there may well be an issue about practical difficulty and expense because the father has, at numerous times in his evidence, expressed a concern about the financial burden this places on him. It also involves quite onerous travel for the mother who seems dependent on members of her family in this regard. I acknowledge, however, that these difficulties are not insurmountable. I have no concerns about the capacity of the mother to provide for all of the needs of the children. Any past suicidal ideations she may have had seems to have been associated with post-natal depression, as well as contributed to by the abuse that she has suffered at the hands of the father. I have no ongoing concerns in this regard.
There are real issues about the father’s capacity to meet the children’s needs in the context of a case where the evidence of his violence, abuse, and controlling behaviour is so clear and yet he refused to acknowledge this, or its consequences. Both children come from a Vietnamese background, and I am satisfied that the mother will maintain that, as is appropriate. I have no concerns about the mother’s attitude towards the children, and for the responsibilities of parenthood. In stark contrast, I have most significant concern about the father in this regard.
It is disconcerting indeed that the evidence suggests that the father has a history of perpetrating violence in intimate relationships. His intelligent, articulate and deferential approach before the Court, and before others, seems to mask dangerous, if not misogynistic attitudes about his intimate partners, and irresponsible attitudes in relation to parenthood. I am satisfied that a no contact order is, in fact, the order that would be least likely to lead to the institution of further proceedings in relation to these children. Given the history of this matter, any order for contact, even mere recognition contact, runs the risk of further litigation.
The order in the best interests of the children
This is a sad case. An order for no contact is made reluctantly and rarely. As early as 1980, Baker J in Hughes & Hughes (1980) FLC 90-869 articulated some general principles relating to circumstances under which a court may refuse contact. Those principles focus on the conduct of the non-custodial parent, particularly during contact visits. He emphasised the responsibility of the Court to protect the ongoing relationship between the custodial parent and the children, particularly when such relationship is both emotionally stable and environmentally secure. If necessary, this relationship must be protected by an order refusing contact altogether. This is such a case.
The findings I have made about family violence are at the extreme end of the scale. The violence was physical, verbal, sexual and involved controlling behaviour. At no time would the father acknowledge this behaviour, or accept that there were consequences for his children.
An order for sole parental responsibility is entirely appropriate on the facts of this case. I did not understand the father to be in opposition to this. In any event, the findings I have made exclude the possibility of equal shared parental responsibility.
I have, for the reasons articulated above, rejected the proposal for unsupervised contact, or for supervised contact, even on the basis proffered as an alternative by the mother, ie, for two hours each three months. There is insufficient benefit to the children in such an arrangement, even if it were reasonable practicable which I find it is not.
I understood the father not to oppose orders in relation to [Y]’s birth certificate, surrender of passports, removal from the airport watch list, obtaining of fresh passports.
There does seem to be an issue about the mother being able to travel to Vietnam with the children. She seeks no orders, or restrictions in this regard. Given the orders for sole parental responsibility, and the other orders referred to above, she would be free to come and go as she pleases. The Independent Children’s Lawyer seeks an order that she be permitted to travel to Vietnam for no longer than eight weeks. The mother prefers that she travel for no longer than four weeks. In those circumstances of a no contact order, I see no reason to limit the mother’s ability to come and go as she pleases. Accordingly, I will make no order in this regard.
The Independent Children’s Lawyer proposes telephone contact, but for the reasons I have articulated above, I do not think that that is in the best interests of the children. Regrettably, the facts indicate that this is a case for no contact and no communication.
The Independent Children’s Lawyer proposes that there be an order for the mother to provide the father with information in relation to the children’s medical conditions, as well as schooling. I can see no harm to the children, or to the mother, in the father being kept appraised of their medical condition (particularly as regards [Y]) and their progress at school. Of course, this would involve the father becoming aware of where the children attend school. To obviate the risk that he would attempt to approach them at school I will make an order restraining him from so doing. Whilst my order is for no contact and no communication, I cannot rule out the possibility that when the children are older they will seek out their father. On this basis, I can see the benefit of the father being apprised of their medical and educational development, but he is not to attempt to contact the children in any way, at any place.
The mother seeks orders under section 68B for the personal protection of the children and herself. On the facts of this case, I can see the appropriateness of making this order. Apprehended violence orders do not appear to have had the effect of adequately protecting the mother and the children from the consequences of the father’s violence. There has been a surprising lack of accountability in the Local Court, for the father’s actions, but I freely acknowledge that the learned Local Court Magistrates appear not to have had the benefit of the extensive evidence that I have had. In any event, the apprehended violence orders have been time limited, whereas the order under section 68B will not be.
On balance I consider the primary orders sought by the mother to be in the best interests of the children. For the reasons stated, I do not intend to make order 4, the alternative order. I will make orders that require her to keep the father appraised of the children’s medical and educational development. Otherwise orders will be made in terms of the minute of order sought. At the end of submissions Counsel for the Independent Children’s Lawyer sought costs. I think it better to deal with the issue of costs separately, and to give the father the opportunity to make submissions in this regard, particularly as regards his financial circumstances.
If the mother and/or the Independent Children's Lawyer wishes to make an application for costs this should be in the form of written submissions not exceeding 250 words filed and served within 28 days. The father will then have a further 28 days to provide his written submissions not exceeding 250 words in response. If the father asserts that his financial circumstances are such that no order for costs should be made, in addition to his written submissions he should file a sworn financial statement.
I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 4 March 2011
Schedule of Orders
Minute of Order sought by the Father
I would like to visit my children at least 1 hour / fortnight (on Sunday) in peace and harmony at [B] Contact Centre until the AVO will be expired at 9th March 2011.
After 9th March 2011, I would like to visit my children at Play Ground of McDonald’ [sic] Restaurant at least 1 hour / fortnight (on Sunday) in peace and harmony and after that, my children will go home with their mother.
At the visiting time, I don’t want my ex-sister in law and member(s) in her gang to approach me, harass me and assault me.
I will call my ex-wife
if I am sick or
if I have my family commitment
(example: my wife is in hospital,
My wife is expecting babe …)
Legal Aid Lawyers have no right to abuse this matter on purpose to terminate my visiting after that.
In the near future, I will have more children of my next marriage
My daughter, [X] and
My son, [Y]
They have the right to see, to visit, to contact their half-brother(s) and half-sister(s).
When my children, [X] and [Y] get sick and they have to stay in hospital.
I would like to know their hospital,
to contact their doctor or their nurse,
to see their medical report,
to visit and to help my children,
when they need me.
Next year, 2011, I would like to enrol for my children to leave Vietnamese Language at [suburb omitted] Vietnamese Language Saturday School
also
I would like to contact their school and their teacher,
to see their school report,
to help them when they needs me.
Legal Aid Lawyers have no right to interfere my children education.
Legal Aid Lawyers have no right to abuse my children on purpose against me.
My ex-wife had contacted me on 04/08/2010 and requesting me to lift the airport watch list and to apply for passorts [sic] for the children.
I kindly advise that I am agreed to lift the airport watch list and to apply for passports for the children with the condition that my ex-wife and the children to travel to Vietnam for one month per visit.
I am ready to help and to support my ex-wife and my children if they need me in hard time.
I love my children and I would like to see my children in peace and harmony.
Please help me and my children.
I am grateful to you for giving me your permission to see my children and I appreciate what you have done for my children.
Thank you very much, God bless you.
Minute of Order sought by the Mother
That the Mother have sole parent responsibility for the children, [X] born [in] 2007 and [Y] born [in] 2008 (‘the children’).
That the children live with the Mother.
That the children spend no time with the Father.
That the Mother be authorised to apply to the Registrar of Births, Deaths and Marriages of NSW so that the child registered as [Y] born [in] 2008 now be registered as [Y].
That pursuant to section 28(f) of the Births, Deaths and Marriages Act (NSW) 1995, the Registrar register the Child’s name in the form specified in Order (4) herein.
The Mother shall take all reasonable steps to serve a sealed copy of these Orders upon the Registrar of Births, Deaths and Marriages of NSW within 28 days of receipt of a sealed copy of these Orders.
That the Father forthwith surrender to the Family Law Registry at Sydney the passport for [X].
That the names of the children, [X] born [in] 2007 and [Y] born [in] 2008, be removed from the Airport Watch List AND IT IS REQUESTED that the Australian Federal Police give effect to this Order.
That the Mother be authorised to apply for and obtain an Australian passport for the children, [X] born [in] 2007 and [Y] born [in] 2008, notwithstanding the Father’s consent is not obtained AND IT IS REQUESTED that the Department of Foreign Affairs and Trade issue a passport for the said children.
That the Mother have sole parental responsibility for the renewing of the children’s passports without the consent of the Father being required for such renewal.
That pursuant to sections 68B(a) and 68B(b)(i), the Court grants an injunction for the personal protection of the children, [X] born [in] 2007 and [Y] born [in] 2008, and the mother, Ms Nhan, hereby restraining the father Mr Trinh (aka Mr Trinh), from:
Approaching, contacting or attempting to contact the mother or either of the children by any means whatsoever.
Coming within 100 metres of any place where the mother or either of the children may from time to time reside.
Entering or attempting to enter any place where the mother or either of the children may from time to time reside.
Coming within 100 metres of any child care facility, pre-school or school attended by either of the children from time to time.
Assaulting, molesting, harassing, threatening or stalking the Mother or either of the children.
Minute of Order sought by the Independent Children’s Lawyer
That the mother have sole parental responsibility for the children.
That the children live with the Mother.
That the children spend time with the Father on the following basis;
(a)For a period of three (3) years from the date of these Orders, for a period of 1-2 hours each fortnight, such times to be supervised by a Contact Centre.
(b)Thereafter for a period of six (6) hours each alternate Sunday from 10am till 4pm, or as otherwise agreed.
That the Father be permitted to telephone the children once per week.
That the mother provide the Father with copies of all medical reports prepared by specialists in relation to both children.
That the Father be permitted to arrange with any school which the children may attend from time to time, to receive copies of all school reports, newsletters and invitations.
That the Mother retain the passports issued for the children.
That the children’s name be removed from the Airport Watch List.
That the Mother be permitted to travel to Vietnam with the children for a period of no longer than 8 weeks in any calendar year, with the Mother to provide the Father with one months written notice of her intention to travel.
That the Mother be permitted to change the child [Y]’s name, as per her application.
That each party refrain from denigrating the other parent, or members of that parent’s family in front of the children.
0
4
1